Levy v. LEXINGTON COUNTY, SC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

R.O. LEVY; BETTY A. ETHEREDGE, 

Plaintiffs-Appellees,

v.

LEXINGTON COUNTY, SOUTH

CAROLINA, SCHOOL DISTRICT THREE

BOARD OF TRUSTEES,

Defendant-Appellant,  No. 09-1550

and

ELTON WILSON, in his official

capacity as Chair of the Lexington

County Registration and Election

Commission,

Defendant.



Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Margaret B. Seymour, District Judge.

(3:03-cv-03093-MBS)

Argued: September 24, 2009

Decided: December 21, 2009

Before KING and DUNCAN, Circuit Judges, and

Irene M. KEELEY, United States District Judge for the

Northern District of West Virginia, sitting by designation.

2 LEVY v. LEXINGTON COUNTY

Vacated and remanded by published opinion. Judge Duncan

wrote the opinion, in which Judge King and Judge Keeley

joined.

COUNSEL

ARGUED: Allan Lee Parks, Jr., PARKS, CHESIN & WAL-

BERT, PC, Atlanta, Georgia, for Appellant. Laughlin

McDonald, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, Atlanta, Georgia, for Appellees. ON

BRIEF: David T. Duff, DUFF, WHITE & TURNER, LLC,

Columbia, South Carolina; Kevin V. Parsons, SMITH, PAR-

SONS & VICKSTROM, PLLC, Charlotte, North Carolina,

for Appellant. Meredith Bell-Platts, AMERICAN CIVIL LIB-

ERTIES UNION FOUNDATION, Atlanta, Georgia; Herbert

E. Buhl, III, LAW OFFICES OF HERBERT E. BUHL, III,

Columbia, South Carolina, for Appellees.

OPINION

DUNCAN, Circuit Judge:

This appeal arises from a district court’s order holding that

the school board election system of Lexington County, South

Carolina, violates Section 2 of the Voting Rights Act of 1965,

42 U.S.C. § 1973 ("Section 2"). Appellant Lexington County

School District Three Board of Trustees (the "School Board")

argues that the district court erred in its analysis by consider-

ing only the elections that took place between 1994 and 2004,

and by misapplying the factors set forth by the Supreme Court

in Thornburg v. Gingles, 478 U.S. 30 (1986). For the reasons

that follow, we vacate the order and remand for further pro-

ceedings.

LEVY v. LEXINGTON COUNTY 3

I.

Lexington County School District Three (the "District") is

one of five school districts in Lexington County, South Caro-

lina. It lies primarily within Lexington County, but also

includes a small portion of neighboring Saluda County. The

District is small: based on the 2000 Census, the total popula-

tion of the District is only 12,807 persons. African-Americans

constitute 28.5 percent of the population and approximately

22 percent of registered voters. The District educates roughly

2,100 students, about 40 percent of whom are minorities.

Before 1978, the School Board members were appointed by

the Lexington County Board of Education. But pursuant to a

1978 referendum vote, the District established a seven-

member School Board, elected in at-large,1 nonpartisan elec-

tions held in the last week of February of each year. School

Board members were elected to staggered, four-year terms,

with two seats elected in three of every four years, and the

remaining seat elected in the fourth. Under this electoral sys-

tem, three African-American individuals were elected to the

School Board from 1978 through 1993.

In 1994, the District’s method of electing School Board

members changed again. Under this new system, which con-

tinues to the present day, School Board members are elected

in nonpartisan, at-large elections held during the November

general election in even-numbered years. Four seats are

elected in presidential years and three seats are elected in non-

presidential even years. Since this change, voter turnout has

1

Under at-large electoral systems, "a group of candidates is placed on

the ballot to fill a designated number of seats, and voters from everywhere

within the jurisdiction may vote to fill those seats." Steven J. Mulroy, The

Way Out: A Legal Standard for Imposing Alternative Electoral Systems as

Voting Rights Remedies, 33 Harv. C.R.-C.L. L. Rev. 333, 336 (1998).

"The traditional winner-take-all form of at-large elections allows each

voter to cast only one vote for each candidate, up to the number of avail-

able seats." Id.

4 LEVY v. LEXINGTON COUNTY

quadrupled. Voter turnout among Whites, however, has out-

paced voter turnout among African-Americans.

On September 29, 2003, R.O. Levy, Betty A. Etheredge,

and Shirley W. Barr2 (collectively, "Plaintiffs") filed an action

against the School Board, its individual members, and Elton

Wilson in his official capacity as Chair of the Lexington

County Registration and Election Commission. Plaintiffs

alleged that the current School Board election process dilutes

the voting strength of African-American voters in violation of

Section 2. They explained that because of the new system,

"[c]andidates for the [School Board] preferred by African

Americans are usually defeated by the white majority voting

as a bloc." J.A. 18.

This case went to a bench trial on December 5, 2005. After

two days of testimony, the trial was recessed until March 8,

2006. At trial, Plaintiffs showed that from 1994 through 2003,

nine African-American candidates ran for the School Board

but none were elected. Although they conceded that one

African-American candidate, Cora Lester, was elected to the

School Board in 2004, Plaintiffs argued that the School Board

encouraged her candidacy after this action was filed in order

to thwart their Section 2 challenge. The trial ended on March

10, 2006.

The district court took this matter under advisement for

three years. During that time, two School Board elections

were held in 2006 and 2008. In the 2008 election, an African-

American candidate named Leon Drafts was elected. Given

his success, on January 21, 2009, the School Board filed a

motion for leave to supplement the record with the 2008 elec-

tion results.

On February 19, 2009, and without first deciding the

School Board’s motion to supplement, the district court issued

2

Barr was dismissed as a party on September 28, 2004.

LEVY v. LEXINGTON COUNTY 5

its judgment on the merits (the "Order"). The district court

explained that, based on "information up to and including the

2004 election," it determined that the School Board electoral

system adopted in 1994 violates Section 2. J.A. 731. This

appealed followed.3

II.

Section 2(a) of the Voting Rights Act of 1965 prohibits a

state or its political subdivisions from imposing any electoral

procedure or practice "in a manner which results in a denial

or abridgement of the right of any citizen of the United States

to vote on account of race or color." 42 U.S.C. § 1973(a). Sec-

tion 2(b) of the Act, as amended in 1982, further provides that

a violation of Section 2 occurs

if, based on the totality of circumstances, it is shown

that the political processes leading to nomination or

election in the State or political subdivision are not

equally open to participation by members of a class

of citizens protected by subsection (a) of this section

in that its members have less opportunity than other

members of the electorate to participate in the politi-

cal process and to elect representatives of their

choice.

42 U.S.C. § 1973(b). This means that, where Whites have a

majority, minority members have less opportunity than other

members of the electorate to participate in the political pro-

cess and to elect representatives of their choice if the White

majority votes sufficiently as a bloc to defeat the minority’s

preferred candidates. See Gingles, 478 U.S. at 48-51.

In Gingles, the Supreme Court explained that three precon-

3

Later, on April 17, 2009, the district court denied the School Board’s

motion to supplement. The court also denied a subsequent motion for

reconsideration.

6 LEVY v. LEXINGTON COUNTY

ditions must be established for any Section 2 violation. First,

"the minority group must be able to demonstrate that it is suf-

ficiently large and geographically compact to constitute a

majority in a single-member district." Id. at 50. Second, "the

minority group must be able to show that it is politically cohe-

sive." Id. at 51. Third, "the minority must be able to demon-

strate that the white majority votes sufficiently as a bloc to

enable it . . . usually to defeat the minority’s preferred candi-

date." Id. (internal citation omitted).

"If these preconditions are met, the court must then

determine under the ‘totality of circumstances’ whether

there has been a violation of Section 2." Lewis v. Alamance

County, N.C., 99 F.3d 600, 604 (4th Cir. 1996) (citing

Johnson v. De Grandy, 512 U.S. 997, 1011 (1994); Collins

v. City of Norfolk, Va. ("Collins I"), 816 F.2d 932, 938 (4th

Cir. 1987)). In this analysis, courts should consider the factors

set forth in the Senate Judiciary Committee Majority Report

(the "Senate Report") accompanying the 1982 amendment

to Section 2 to determine whether, under the totality of the

circumstances, Section 2 has been violated.4 Collins I, 816

4

Those factors are:

1. the extent of any history of official discrimination in the state

or political subdivision that touched the right of the members of

the minority group to register, to vote, or otherwise to participate

in the democratic process;

2. the extent to which voting in the elections of the state or politi-

cal subdivision is racially polarized;

3. the extent to which the state or political subdivision has used

unusually large election districts, majority vote requirements,

anti-single-shot provisions, or other voting practices or proce-

dures that may enhance the opportunity for discrimination against

the minority group;

4. if there is a candidate slating process, whether the members of

the minority group have been denied access to that process;

LEVY v. LEXINGTON COUNTY 7

F.2d at 934.5

In the case before us, the School Board alleges several

errors below. It argues that the district court erred by consid-

ering only the elections that took place between 1994 and

2004. It further argues that the district court’s application of

the second and third Gingles factors was based on factual and

legal errors.6 We discuss each argument in turn.7

5. the extent to which members of the minority group in the state

or political subdivision bear the effects of discrimination in such

areas as education, employment and health, which hinder their

ability to participate effectively in the political process;

6. whether political campaigns have been characterized by overt

or subtle racial appeals; and

7. the extent to which members of the minority group have been

elected to public office in the jurisdiction.

[8.] whether there is a significant lack of responsiveness on the

part of elected officials to the particularized needs of the mem-

bers of the minority group[; and]

[9.] whether the policy underlying the state or political subdivi-

sion’s use of such voting qualification, prerequisite to voting, or

standard, practice or procedure is tenuous.

S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S. Code

Cong. & Admin. News 177, 206-07 (footnote call numbers omitted) (cited

in Collins v. City of Norfolk, Va. ("Collins II"), 883 F.2d 1232, 1236 n.3

(4th Cir. 1989)).

5

We recognize that Collins v. City of Norfolk, Va., 768 F.2d 572 (4th

Cir. 1985) was technically the first Collins case. Lewis, however, desig-

nated Collins v. City of Norfolk, Va., 816 F.2d 932 (4th Cir. 1987) as "Col-

lins I" and Collins v. City of Norfolk, Va., 883 F.2d 1232 (4th Cir. 1989)

as "Collins II." 99 F.3d at 604, 611. Thus, we adopt those designations

here for the sake of consistency and clarity.

6

At a hearing held on September 9, 2004, the district court held that

Plaintiffs had established the first Gingles factor, so its analysis in the

Order focused solely on the second and third factors.

7

The School Board also contends that the district court, in its totality of

the circumstances analysis, (1) failed to consider unrebutted evidence in

8 LEVY v. LEXINGTON COUNTY

A.

We first review the School Board’s contention that the dis-

trict court wrongly limited its analysis to elections that took

place between 1994 and 2004. The School Board insists that

the district court should have allowed into the record the

results from the 2006 and 2008 elections. As noted above,

although the School Board moved to supplement the record

with the 2008 election results after the case had been submit-

ted for decision, the district court denied this motion in a

paperless order almost two months after issuing the Order. In

doing so, the court gave only this explanation: "[T]he interests

of justice are best served by closing the record." J.A. 14. The

School Board then moved for reconsideration, asking the

court to consider both the 2006 and the 2008 elections. The

court denied that motion as well.

It is within the district court’s discretion to reopen a case

to admit new evidence.8 See Dent v. Beazer Materials and

Servs., Inc., 156 F.3d 523, 533 (4th Cir. 1998). When decid-

ing whether a district court abused this discretion, we consider

whether (1) the evidence sought to be introduced is especially

important and probative; (2) the moving party’s explanation

the record showing that minority candidates lost for reasons other than

White bloc voting; (2) improperly discounted the post-litigation election

of Cora Lester in 2004 due to "special circumstances"; and (3) failed to

consider substantial record evidence as to the Senate Report factors that

supports the rejection of Plaintiffs’ claim. Because we remand on other

bases, we do not find it necessary to address these arguments.

8

The School Board did not seek to reopen the case but instead moved

to supplement the record. To allow one side to supplement the record

without allowing the opposing party the opportunity to contest the admis-

sibility, reliability, and accuracy of the new evidence, and to offer rebuttal

evidence, would implicate due process concerns. See, e.g., Greene v.

McElroy, 360 U.S. 474, 497 & n.25 (1959). However, the district court

could have granted the School Board’s request on the condition that Plain-

tiffs would be allowed to test and rebut the new evidence. Thus, the

School Board’s request did not necessarily offend due process.

LEVY v. LEXINGTON COUNTY 9

for failing to introduce the evidence earlier is bona fide; and

(3) reopening will cause undue prejudice to the nonmoving

party. Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 746

(1st Cir. 1995); see also United States v. Abbas, 74 F.3d 506,

510-11 (4th Cir. 1996) (considering similar factors in a crimi-

nal matter); Gibson v. Mayor and Council of Wilmington, 355

F.3d 215, 229 (3d Cir. 2004) (considering similar factors, "in-

cluding the burden that will be placed on the parties and their

witnesses, the undue prejudice that may result from admitting

or not admitting the new evidence, and considerations of judi-

cial economy"). "[I]t is generally understood that a trial court

abuses its discretion if its refusal to reopen works an ‘injus-

tice’ in the particular circumstances." Rivera-Flores, 64 F.3d

at 746 (citing Gas Ridge, Inc. v. Suburban Agric. Props., Inc.,

150 F.2d 363, 366 (5th Cir. 1945)).

We are persuaded that the district court’s failure to consider

the 2006 and 2008 election results in the Order "work[ed] an

‘injustice’ in the particular circumstances."9 Id. Those elec-

toral results are important and probative given that an

African-American candidate was elected to the School Board

in 2008. In addition, the School Board had a bona fide expla-

nation for failing to introduce this evidence earlier: such evi-

dence was not available until after the bench trial concluded.

Finally, although we are sympathetic to Plaintiffs’ wish to

have this case resolved sooner rather than later, we find that

concern counterbalanced by the district court’s delay of

almost three years in issuing the Order. Because of that delay,

two more relevant elections occurred; on such facts, we can-

not say Plaintiffs still retain the same interest in a timely dis-

position as they would have had before the 2006 election.

Thus, reopening the case here will cause no undue prejudice

9

Although the School Board only moved to introduce the results of the

2008 election, we agree with the district court’s holding that "the 2008

school board election results would be of little benefit to the court absent

the inclusion of the relevant information from both the 2006 and the 2008

elections in the expert analysis." J.A. 14.

10 LEVY v. LEXINGTON COUNTY

to Plaintiffs, so long as they are afforded an opportunity to

test and rebut the evidence presented by the School Board.

See Collins II, 883 F.2d at 1243 (although trial was originally

held in 1984, subsequent elections were considered by both

trial court and appellate court); Westwego Citizens for Better

Gov’t v. City of Westwego, 906 F.2d 1042, 1045 (5th Cir.

1990) ("[G]iven the long term nature and extreme costs neces-

sarily associated with voting rights cases, it is appropriate to

take into account elections occurring subsequent to trial.").

Accordingly, we vacate the district court’s Order and remand

for further proceedings in which the parties will have the

opportunity to present the 2006 and 2008 election results.10

10

The School Board also argues that the district court should have con-

sidered the results from the 1980-1993 elections. Although we remand for

further consideration of the 2006 and 2008 elections, the district court is

not required to consider the pre-1994 elections. The complaint challenged

only the present voting system, and "[e]lections held under a significantly

different electoral structure" are less probative in a Section 2 analysis. See

NAACP v. City of Niagara Falls, N.Y., 65 F.3d 1002, 1012 (2d Cir. 1995).

The present electoral system here is significantly different from the pre-

1994 system. Not only was the election moved from February to Novem-

ber, resulting in voter turnout quadrupling, but the number of candidates

elected at each election also changed.

Still, the School Board makes much of the fact that the district court

only considered six elections in its analysis, and thus argues that, pursuant

to our holding in Lewis and the Second Circuit’s in Niagara Falls, the dis-

trict court should have considered the results from the 1980-1993 elec-

tions. Neither Lewis nor Niagara Falls specifies how many elections a

court must review to analyze a Section 2 violation. Lewis declined to set

a bright-line standard and chose to "leave to another day the question of

precisely how many elections must be considered in order for a district

court’s conclusions to be adequately supported." 99 F.3d at 611. Admit-

tedly, Lewis implied that a majority of elections should be considered, id.

at 608, and Niagara Falls did characterize five elections as a slim record,

65 F.3d at 1012. However, the district court here considered all elections

since 1994, in compliance with Lewis. Also, although six elections may be

a slim record, Niagara Falls does not require a district court to consider

exogenous elections if they were held under significantly different elec-

toral systems. Thus, we are not persuaded the district court committed

legal error by excluding from its Section 2 analysis the 1980-1993 elec-

tions.

LEVY v. LEXINGTON COUNTY 11

B.

Because we are remanding the case, we will address other

issues raised on appeal that are likely to recur. See Elm Grove

Coal Co. v. Dir., O.W.C.P., 480 F.3d 278, 299 n.20 (4th Cir.

2007) ("We choose to address this discovery issue because it

is likely to arise on remand."). Specifically, we review the

School Board’s arguments that the district court erred in its

application of the second and third Gingles factors.

1.

We first consider whether the district court erred in its anal-

ysis of the third Gingles factor.11 Under this factor, the court

must determine whether the majority votes as a bloc to enable

it to usually defeat the minority’s preferred candidate.

Gingles, 478 U.S. at 51. To do so, the court must first identify

those individuals who constitute minority-preferred candi-

dates of choice, and then analyze whether those candidates are

usually defeated by majority White bloc voting. Collins II,

883 F.2d at 1237; see Lewis, 99 F.3d at 611-14 (laying out the

proper criteria for identifying minority-preferred candidates of

choice). The School Board argues that the district court made

several errors in its identification of the minority-preferred

candidates of choice. We address each alleged error in turn.

a.

First, the School Board challenges the method that the dis-

trict court employed to determine whether a candidate who

received less support from minority voters than an unsuccess-

11

We address the third Gingles factor before the second because doing

so makes for ease of analysis in this case. The factors are conjunctive, but

there is no requirement that we analyze them in alphanumerical order. See,

e.g., Voinovich v. Quilter, 507 U.S. 146, 158 (1993) (disposing of the

plaintiffs’ Section 2 claim without analyzing the first Gingles pre-

condition, since the Court found that the plaintiffs had failed to meet the

third pre-condition).

12 LEVY v. LEXINGTON COUNTY

ful first choice may nevertheless be deemed a minority-

preferred candidate of choice in a multi-seat election. Pursu-

ant to Lewis,

if the unsuccessful candidate who was the first

choice among minority voters did not receive a "sig-

nificantly higher percentage" of the minority com-

munity’s support than did other candidates who also

received a majority among minority voters, . . . then

the latter should also be viewed by the district court

as minority-preferred candidates.

99 F.3d at 612. Lewis, however, left the term "significantly

higher" undefined.

In the Order, the district court defined this term based on

Collins II, 883 F.2d at 1238. The court read Collins II as find-

ing that two successful candidates (with 58.2 percent and 56.5

percent of the African-American vote) were not minority-

preferred candidates of choice because they received signifi-

cantly less minority support than the unsuccessful top minor-

ity vote-getter, who received 73.4 percent of the African-

American vote. Noting that the differences between the

unsuccessful candidate and the successful candidates were

15.2 and 16.9 percentage points respectively, the district court

proceeded to classify any candidate in the present case 15 per-

centage points or more below the unsuccessful top vote-getter

as having received significantly less minority support than the

unsuccessful top minority vote-getter.

We disagree with the district court’s reasoning. Although a

15-percentage-point differential may be the appropriate stan-

dard, it is not necessarily so. Interpreting analogous language,

Lewis explained that "[t]he level of support that may properly

be deemed ‘substantial’ will vary, of course, depending on the

number of candidates on the ballot and the number of seats to

be filled." 99 F.3d at 614 n.11. As such, to determine whether

a candidate who received less support from minority voters

LEVY v. LEXINGTON COUNTY 13

than an unsuccessful first choice may be deemed a minority-

preferred candidate of choice in a multi-seat election, a dis-

trict court should first consider the number of candidates on

the ballot and the number of seats to be filled.12 Only then

should the court make a determination of whether the unsuc-

cessful top minority vote-getter received a significantly higher

percentage of the minority community’s support than did

other candidates. The district court, however, did not under-

take this type of analysis. Thus, we agree with the School

Board that the district court’s candidate-of-choice analysis

rests on an improper understanding of the term "significantly

higher".

b.

Next, the School Board argues that the district court, in

applying the third Gingles factor, erred by assuming that no

minority-preferred candidates of choice can come from an

election in which no candidate received a majority of the

minority vote. The district court reached this conclusion after

determining that neither Lewis nor Collins II establishes a

construct for analyzing elections in which no candidate

received a majority of the minority vote. Accordingly, the dis-

trict court concluded that the 2002 election was devoid of

minority-preferred candidates of choice because "no candi-

date received a majority of the black vote" during that elec-

tion. J.A. 754-55.

The district court’s reasoning assumes that a person without

support from over 50 percent of minority voters cannot be

deemed a minority-preferred candidate. Lewis, however, said

12

We recognize that in Collins II, just as here, voters filled either three

or four seats each election, depending on the year. 883 F.2d at 1239. How-

ever, the number of candidates that sought the open seats in Collins II dif-

fers from that in the case at hand. Thus, while a 15-percentage-point

differential was the appropriate standard in Collins II, and may be so here,

we cannot conclude that without first considering the number of candi-

dates on the ballot and the number of seats to be filled.

14 LEVY v. LEXINGTON COUNTY

the opposite: "[W]e do not believe that the mere failure to

achieve a threshold of 50% in a multi-candidate election nec-

essarily means that a candidate cannot be viewed as a black-

preferred candidate." 99 F.3d at 613 n.10. In that case, we

considered the treatment of second- and third-place finishers

behind a successful, minority-preferred candidate of choice

who had received more than 50 percent of the minority vote.

We ultimately found that in a multi-seat election,

[c]andidates who receive less than 50% of the minor-

ity vote, but who would have been elected had the

election been held only among black voters, are pre-

sumed also to be minority-preferred candidates,

although an individualized assessment should be

made in order to confirm that such a candidate may

appropriately be so considered.

Id. at 614.

If such candidates can be considered minority-preferred

candidates of choice in an election in which the top vote-

getter received more than 50 percent of the vote, we see no

reason why a similarly popular candidate—one that would

have been elected had the election been held only among

African-American voters—should not also be considered a

minority-preferred candidate of choice in an election in which

no candidate received 50 percent or more of the minority vote.13

See, e.g., Ruiz v. City of Santa Maria, 160 F.3d 543, 552 (9th

Cir. 1998). Thus, we find that in elections in which no candi-

date receives a majority of the minority vote, a candidate may

still be labeled a minority-preferred candidate of choice if that

candidate would have been elected had the election been held

13

Under this construct, for example, William Berry and Stephen Pad-

gett, the top minority vote-getters in 2002 with 48 percent of the African-

American vote, could potentially be classified as minority-preferred candi-

dates of choice if an individualized assessment supports that conclusion.

LEVY v. LEXINGTON COUNTY 15

only among minority voters, so long as an individualized

assessment of that candidate supports that conclusion.14

c.

Finally, the School Board contends the district court erred

in adopting Plaintiffs’ expert’s report over their own expert’s

report to ascertain the minority-preferred candidates of

choice. To determine which candidates were minority pre-

ferred, Plaintiffs’ expert, Dr. John Ruoff, analyzed elections

for the School Board from 1986 to 2004 using three statistical

methods of analysis: homogenous precinct, ecological regres-

sion, and ecological inference. The School Board’s expert, Dr.

David Epstein, analyzed the same data using the ecological

inference method. Ruoff concluded that there were eight

minority-preferred candidates of choice for the School Board

between 1994 and 2004. Of those eight, one was elected to

the School Board. By contrast, Epstein concluded that there

were seventeen minority-preferred candidates of choice dur-

ing that period. Of those seventeen, six were elected to the

School Board.

The district court favored Ruoff’s results over Epstein’s,

but its reasons for this selection are unclear.15 The district

court explained its choice, in total, as follows:

14

In those circumstances, the district court should ensure that the candi-

date can be fairly considered a representative of the minority community.

In addition to the bare statistics, the district court may consider testimony

from political observers and the candidates themselves to determine

whether those candidates may be labeled minority-preferred candidates of

choice. See Collins II, 883 F.2d at 1238.

15

The School Board suggests that the district court preferred Ruoff’s

data over Epstein’s because Epstein "changed his definition of candidate

of choice significantly during the course of litigation." J.A. 752. This argu-

ment is without merit. After finding Epstein had changed his definition of

candidate of choice several times, the district court rejected Epstein’s defi-

nition for "minority-preferred candidate of choice," not his data altogether.

16 LEVY v. LEXINGTON COUNTY

The court finds more reliable Dr. Ruoff’s use of

three statistical methods of analysis—homogenous

precinct (HP), ecological regression (ER), and eco-

logical inference (EI)—as compared to Dr. Epstein’s

analysis utilizing only the EI method of analysis.

The court also finds persuasive Dr. Ruoff’s explana-

tions regarding the Ridge Road precinct.16 The court

[thus] adopts Dr. Ruoff’s statistical analysis.

J.A. 755-56 (footnote call number added).

We recognize that our role in reviewing the district court’s

reliance on Ruoff’s expert testimony is limited. In re Corru-

gated Container Antitrust Litig., 659 F.2d 1322, 1326 (5th

Cir. 1981); see also Collins I, 816 F.2d at 936 ("It is within

the trial court’s discretion to find that methodological flaws

undercut the probative value of a study so deeply as to render

it inadmissible."); Ludlow Corp. v. Textile Rubber & Chem.

Co., Inc., 636 F.2d 1057, 1060 (5th Cir. 1981) ("The compe-

tency and qualifications required of expert witnesses is a mat-

ter committed to the broad discretion of the trial judge. . . .

When it sits without a jury, the trial court’s discretion is also

the sole determinant of the weight to be given expert testi-

mony.") (internal citations omitted). Nevertheless, there are

problems with Ruoff’s data that do not appear to have been

considered by the district court. For example, Ruoff’s choice

to exclude the Ridge Road precinct from his analysis appears

16

Ruoff explained that Ridge Road, a particularly large, overwhelmingly

White precinct, was an outlier and thus required special treatment. At the

time of the 2004 election, Ridge Road contained 1,087 voters, only 22 (2

percent) of whom were African-American. Ruoff opined that, since the

Ridge Road precinct overwhelmingly consists of White voters, including

this precinct in the regression analysis would have overestimated the per-

cent of African-American votes in favor of minority-preferred candidates.

Rather than simply discarding the votes from the Ridge Road precinct,

Ruoff added them back into the analysis after separately completing the

ecological regression and ecological inference estimates for the remaining

precincts.

LEVY v. LEXINGTON COUNTY 17

suspect. Ruoff used what he termed the "interocular trauma"

or "eyeball" test to identify outliers, although other statistical

methods of analysis of outliers were available. In essence, he

looked at the scatter plots he prepared and assessed whether

they offended his eyesight. Ruoff admitted that other pre-

cincts qualified under his "eyeball" test as outliers, but he

explained that he chose not to take those other precincts out

because it would be nearly impossible to "add [them] back in"

as he did with Ridge Road. J.A. 386. This is not acceptable.

The district court failed to acknowledge or explain what

appear, on review, to be the limitations of Ruoff’s report.

Although "absolute perfection on the base statistical data is

not to be expected, a trial court should not ignore the imper-

fections of the data used nor the limitations of statistical anal-

ysis." Overton v. City of Austin, 871 F.2d 529, 539 (5th Cir.

1989). Here, the district court gave no explanation why one

expert’s data was preferred over the other’s, aside from the

fact that one expert used more methods of analysis than the

other. The district court’s failure to articulate why it preferred

Ruoff’s data over Epstein’s does not allow for a proper review

of the district court’s findings. See Clay v. Bd. of Educ. of St.

Louis, 90 F.3d 1357, 1362 (8th Cir. 1996) (finding that the

district court did not clearly err in accepting one expert’s anal-

ysis over the other where the court "cited several reasons for

discounting the Plaintiffs’ expert analysis").

For these reasons, while we do not necessarily agree with

the School Board that the district court erred in adopting

Ruoff’s report, we also cannot say with certainty that the dis-

trict court properly adopted Ruoff’s expert report in its

candidate-of-choice analysis.17

17

This is of particular concern given that had the district court preferred

Epstein’s data over Ruoff’s, the results of this case would likely have been

very different.

18 LEVY v. LEXINGTON COUNTY

2.

We next consider the School Board’s contention that the

district court’s approach to the second Gingles factor rests on

error. Under the second Gingles factor, to determine whether

a minority group is politically cohesive, a court must ascertain

whether "a significant number of minority group members

usually vote for the same candidates." Gingles, 478 U.S. at

56. The School Board argues that the district court erred in its

determination of political cohesiveness for two reasons.

First, the School Board contends that the district court erred

in its political cohesiveness analysis by only considering

minority support for candidates which the court had already

classified as minority-preferred candidates of choice. We

agree. Given the district court’s assumption that a minority-

preferred candidate of choice needed to have over 50 percent

of minority support, the court’s approach logically guaranteed

a finding of cohesiveness.18

Second, the School Board contends that the district court

wrongly equated political cohesiveness with racial polariza-

tion, i.e., the tendency for voters to prefer candidates of their

same race, by emphasizing that "[e]ach of these candidates is

black." J.A. 739. We note that, although the existence of

racially polarized voting can establish that the minority group

is politically cohesive, see Collins I, 816 F.2d at 935-36; Cot-

tier v. City of Martin, 445 F.3d 1113, 1118 (8th Cir. 2006);

Cousin v. Sundquist, 145 F.3d 818, 826 (6th Cir. 1998); San-

chez v. Colorado, 97 F.3d 1303, 1312 & n.14 (10th Cir.

1996); Westwego Citizens for Better Gov’t v. City of West-

18

For example, the district court determined that no minority-preferred

candidates of choice existed in the 2002 election because no candidate

during that election achieved more than 50 percent of the minority vote.

Thus, in its political cohesiveness analysis, the district court did not con-

sider the 2002 electoral results. Yet, the 2002 results presumably demon-

strate a lack of political cohesiveness—the very factor the district court

sought to establish under the second Gingles factor.

LEVY v. LEXINGTON COUNTY 19

wego, 946 F.2d 1109, 1118 (5th Cir. 1991), the two issues are

quite distinct.19 As the Fifth Circuit has keenly observed,

"[t]hat a group’s voting behavior is racially polarized indi-

cates that the group prefers candidates of a particular race.

Political cohesion, on the other hand, implies that the group

generally unites behind a single political ‘platform’ of com-

mon goals and common means by which to achieve them."

Monroe v. City of Woodville, Miss., 881 F.2d 1327, 1332 (5th

Cir. 1989). Thus, minority voters may be racially polarized

but still lack political cohesion if their votes are split among

several different minority candidates for the same office. Id.

The district court does not appear to have recognized this distinc-

tion.20 Both issues warrant consideration on remand.

III.

For the foregoing reasons, we vacate the district court’s

February 19, 2009 order, and remand for further proceedings.

The outstanding motions are denied as moot.

VACATED AND REMANDED

19

It is not necessary to prove racial polarization in order to find political

cohesiveness. As this court noted in Lewis, "to our knowledge, no court

has held that a white candidate cannot, as a matter of law, be a minority-

preferred candidate." 99 F.3d at 609.

20

In addition, we note that in reviewing the level of support received by

minority-preferred candidates of choice in the various elections, the dis-

trict court failed to note the level of support African-Americans gave to

other candidates during those elections. See Monroe, 881 F.2d at 1332

("Crossover voting by a minority group does not preclude a finding of

political cohesiveness per se, but its presence is relevant.").